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'What is not an offence, does not require a defence' : Madras H.C. Issues Directions To End The Misery of Being Undertrials Indefinitely
A petition was filed under Section 482 of CrPC before the High Court of Madras, for postponing the trial of the petitioner. The petition was filed on the ground that the petitioner wasn't capable of entering the defense or mentally sound to face the trial as provided under Section 84 of IPC, 328 & 329 of CrPC .
Facts :
Kaliyappan, who was suffering from some mental illness was taken to a native doctor, at Salem on 12-05-2006 for treatment. He was accompanied by his father. For administering the medicine, his father Muniyappan along with 3 assistants held Kaliyappan tightly. But he managed to run away screaming that he doesn't need a treatment. His father along with others ran behind him shouting, 'catch him'. A good samaritan, Kondaiyan who was grazing his cattle with a billhook in his hand responded to their words. He tried to apprehend Kaliyapan which made him infuriated & as a result he snatched the billhook from Kondaiyan's hand & attacked him.
He was arrested the next day under Section 302 of IPC & was sent to judicial custody. The District Judicial Magistrate passed an order dated 07-07-2006 directing the examination of Kaliyappan by specialists. He was then admitted to IMH, Kilpauk on 25-08-2006.
He was granted bail under Section of 167(2) CrPC on 30-08-2006 by providing sureties. He was treated till 06-10-2006 at the hospital. A report was submitted on 08-02-2007 stating, he was suffering from schizophrenia. After that on 03-03-2008, the final report was submitted by the police. The Magistrate commenced the proceedings & committed it to Court of Sessions. No steps were taken to satisfy whether he was in a sound state of mind or can understand the proceedings.
The learned Judge framed charges under Section 506(II) & 302 of IPC on 18-09-2008. After which the trial continued from 2008-2011 without any progress.
His case was transferred and his production before the Medical Board in Government Hospital, Salem was directed to decide whether he can face the trial or not. A report was submitted on 31-08-2017 where he was found not fit to face the trial. And so the petition has been filed by Muniyappan on behalf of his son, in fear that the Trial Court may resume the trial without knowing the mental state of Kaliyappan.
Issues before the Court :
- The matter kept on hanging from 2006-2020 without any progress & it should be dropped.
- Also, if he is found to be mentally ill, while committing the offence, he has to be given the benefit u/s 84 IPC. But how ?
For purpose of deciding this, Mr. Sharath Chandran was appointed as the Amicus Curiae. He referred to the relevant provisions of CrPC. He submitted that, before the Amendment, the provisions only provided for the postponement of trial indefinitely.
He pointed out that Sec 328 deals with persons of unsound mind & mental retardation. Although the Courts did not record that Kaliyappan was suffering from mental illness at the time of committing the crime. He stated that the inquiry under Section 328 is different for persons of unsound mind & mental retardation. It was found that, a Magistrate first have to determine whether the unsoundness of mind & mental retardation made him incapable in entering into a defence. If it is true, the dealing of persons suffering from unsoundness of mind would be different from one suffering from mental retardation.
If such person suffers from unsoundness of mind, the Magistrate has to examine the record of evidences, hear the advocate of such person without questioning the accused & discharge him if no prima facie case is found in a manner provided under Section 330. But if a prima facie case appears, it has to be dealt under Section 328(3). If a person suffers from mental retardation, the Magistrate by virtue of sec 328(4) will deal with the accused under Section 330.
Section 329 operates at the stage of trial. Sec 329(2) is confined to persons of unsoundness of mind while 329(3) refers to the procedure to be followed if a prima facie case is found for person suffering from mental retardation. But no provision is present for mentally retarded person against whom no prima facie case can be made. Where express provision are provided u/s 328 for both persons but it is absent u/nder Section 329(1-A)&(2). It would then mean that only medical examination for persons suffering from unsoundness of mind would be there & discharge at the stage of trial would appear for only such persons. And so the omission of mental retardation in these clauses is the failure of the draftsman.
Subsequently, he stated that, sub-section(2) was added to Section 329 to discharge persons against whom no prima facie case can be made from the misery of being undertrials for life. For this it would be necessary that the advocate of such accused be permitted to produce materials to establish that the accused is entitled to exception under Chapter IV of IPC.
Observation of the Court :
The court agreed to Mr Sharath, that every act should pass through the prism of Chapter IV of IPC. If it falls under that category, it is not offence at all. The police should conduct fair investigation & should record in the final report, if the act falls under such category.
The court also pointed that Mr Sharath has summed up saying "what is not an offence, does not require a defence". Moreover, the court stated that, the enquiry under second part of Section 329(2) only commences if the accused is not mentally fit to face the trial. The advocate for the accused should be given opportunity to produce sterling quality materials to render the benefit u/s 84 IPC, because the main objective of Section 329(2) is to provide speedy relief to the mentally ill.
Judgement :
The petition was disposed, directing the trial court to conduct enquiry under first part of Section 329(2) of CrPC, to find whether he is capable of entering into the defense. If he is found fit, trial should be completed within 3 months.
If he is found unfit, enquiry should be conducted under second part of Sec 329(2) CrPC. If the accused's act falls under Section 84 of IPC, he should be discharged according to the provisions of Section 330(3)(a). And to follow Section 330(3)(b), if the court decides not to discharge.
Judge : Hon'ble Mr Justice P.N. Prakash.
Case Courtesy : Kaliyappan v State
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